Ross v. City of Philadelphia

Mr. Justice Paxson

delivered the opinion of the court February 21st, 1887.

This was a scire facias upon a purchase monfey. mortgage. It appears to have been given under the following circumstances : Ross & Stull, the defendants below, in the year 1876, bought from the city a lot, forty feet front, on Elm avenue, for the sum of $8,900. Of this sum, $2,966.67 was paid in cash, and the mortgage in controversy was given for the balance of the purchase money. This lot was near the grounds of -the Centennial Exhibition, and the object of the purchasers was 'to erect a hotel thereon for and during said Exhibition. They proceeded to erect the hotel, and, when it was being completed, they discovered that the building did not stand upon the lot they had purchased, but upon an adjoining lot, also belonging to the city. It was alleged by the defendants that the mistake arose from the surveyor giving them the wrong lines when they commenced building.

About a year thereafter, the defendants procured a deed' from the city for the lot on which the hotel stood. The consideration for this deed was $4,666.67, of which $166.67 was paid in cash; the balance, $4,500 was secured by a bond and mortgage in favor of the city. So that the defendants became the owners of the two lots, with a mortgage upon each to secure the unpaid purchase money.

Another blunder occurred. As I understand the testimony, at the time the defendants took possession of the lot on which they erected their hotel, the said lot was leased to Messrs. Ashton & Crawford. The latter, instead of occupying said lot, took possession of the lot sold to the defendants by the first deed. It appears, therefore, that the defendants erected their hotel on a lot the city had leased to Ashton & Crawford, and that Ashton & Crawford, under their lease, took possession of the lot which the city had sold to the defendants. It was also in evidence that the city had received $1,200 rent from Ashton & Crawford.

The city, not having received either principal or interest upon the mortgage, sued'out this scire facias thereon. Upon the trial below, the defendants offered no evidence of payment. They did offer •t»' show certain parol agreements, made with city officials, whereby the lot first purchased was to be abandoned, and whereby, as part of the consideration of the second purchase, the liability incurred under the bond and mortgage now in suit, was to be wholly discharged. The offer varies in terms in some of the assignments, but they all rest upon the same principle, and may be disposed of together.

We are clear that the evidence offered was properly rejected. Both lots were sold under authority of a city ordinance, passed for the express purpose, and no offer was made to show any change of arrangement by any one having power to contract for the city. It ought to be understood by this time that “ no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by Councils.” This is the precise language of the Act of April 21st, 1858, P. L., 386. It follows from said Act that no officer has any general power to bind the city, and the authority of its agents is necessarily special. There was no offer in this case to show that Councils authorized Hancock, or any one else, to negotiate for the city, 'or that Councils ever ratified what Hancock had done. The Act of 1858 is one of the greatest safeguards which the taxpayer has.

It would have been clear error to have affirmed the defendants’ first point. The effect would have been to have permitted the jury to find there was no debt due the city, not only without evidence, but against the evidence.

The defendants’ remaining points were based upon matters not in evidence in the case; in other words, upon the evidence which the learned judge ruled out, and it was not error to refuse them.

There was a point made at bar that the rent received by the city should, in any event, be allowed as a credit upon the mortgage. No error has been assigned to this specially, but,’ as it may be covered by the last assignment which alleges that the court erred, in directing a verdict for the full amount of the mortgage, I will consider it here.

Unfortunately for the defendants, as I understand the evidence, the city did not receive any rent for the lot on which this mortgage rests. But, as has been explained heretofore, the rent was received for the lot upon which the defendants built their hotel, and the title to which was in the city for the period during which the rent was paid. That the leases were also upon the wrong lot can make no difference. ■ The rent was not collected for that lot.

This may be a hard cese for the defendants; but no reason has been shown why the city should not sell the property pledged for the mortgage debt. The defendants have the legal title and, if they can defeat the mortgage, they will escape altogether. If, upon a sale, it brings less than the debt, the city can, if it thinks defendants have an equity, waive proceedings upon the bond to collect the residue. We see no reason to disturb this judgment, and it is accordingly

Affirmed.